The power of information technology - often touted as the harbinger of democratic enlightenment - is now being used to justify further restrictions on public access to government records.
Of the many mantras hyping information-age democracy, one of the most common goes something like this: The power of computers will bring government closer to the people by giving citizens quick access to government documents.
Like most mantras, it contains a measure of truth. But it may also contain plenty of wishful thinking. An evolving legal doctrine, hashed out in court and in state capitals, suggests that the speed and power that computers allow in storing, collating, and disseminating public records is one reason some electronic documents may soon be harder to obtain than ever. The capabilities and efficiency of information technology - often touted as the harbingers of democratic enlightenment - are ironically being used to justify an even greater clampdown on public access to government records.
The legal basis for this tightening of electronic files threads back more than 20 years, when CBS News correspondent Robert Schakne began investigating a corrupt politician who later pleaded guilty to soliciting illegal campaign contributions. Schakne asked the FBI for criminal rap sheets on Medico Industries, a Pennsylvania defense firm that allegedly received favors from the official. The FBI balked at Schakne's Freedom of Information Act (FOIA) requests, invoking an exemption that allows agencies to withhold "records [that] could reasonably be expected to constitute an unwarranted invasion of personal privacy." Because Pennsylvania's state crime commission already labeled Medico Industries as infiltrated by organized crime, Schakne argued there was compelling public interest in obtaining the information, particularly since the alleged corruption involved an elected official, Representative Daniel Flood (D-Pennsylvania).
But the US Supreme Court sided with the Feds and used the occasion to drop a legal bombshell. Writing for the majority, Justice John Paul Stevens noted that while most of the records contained in the FBI's criminal rap sheets were public, private citizens benefited "from the practical obscurity" of government-held data.
"There is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information," Stevens wrote in the 1989 Justice Department v. Reporters Committee decision.
In other words, the speed with which computers compile vast amounts of disparate data makes digital rap sheets far more invasive than any paper record, which alone could be safely released.
To the Reporters Committee for Freedom of the Press, which joined Schakne in the suit, the message was clear: The First Amendment is great as long as there's no efficient means of carrying it out. "If we wanted to drive all over Pennsylvania, we could get the same information," noted Jane Kirtley, the group's executive director.
Stevens's opinion came at a time of growing public concern over the power of computers to invade personal privacy. This fear - along with government attempts to privatize electronic records to pay for their upkeep - is giving rise to new struggles over access to public records stored electronically. Most "sunshine" laws (like FOIA) were written long before the Internet was standard fare, casting bureaucrats at nearly every level of government into a bitter struggle between the public's right to know and the individual's right to privacy. And it's exactly at those scattered sources - county courthouses, city police stations, and state records depositories - where the tug-of-war is being waged most strenuously.
One of the most notorious battles involves Robert Westbrook, a California entrepreneur who ran a company called Crimeline that sells criminal background information. Westbrook sued Los Angeles County in 1992, after court officials refused to sell him computer tapes storing the court's daily log of prosecutions, pleas, and arraignments. Because Westbrook would need to travel to 46 separate municipal courts to get the goods stored on that one tape, he argued that restricting the information would make his business financially unviable.
Judge Arleigh M. Woods of the state appeals court was unmoved. In 1994, she ruled that the California Constitution's privacy provisions, along with the state's penal code, reserve use of such databases to law enforcement agencies and preclude the courts from giving Westbrook the tapes.
The judge also borrowed a page from the Reporters Committee decision. "It is the aggregate of the information which makes it valuable to [Westbrook]; it is that same quality which makes its dissemination constitutionally dangerous," Woods wrote.
The judge's words sent shock waves throughout the state. "There was panic in the trenches," recalls Alameda County Assistant District Attorney Don Ingraham, who chairs a statewide committee on access to electronic criminal records. Ingraham was thrown into the fracas after a local legal aide lawyer complained that Alameda's municipal court violated his clients' privacy rights - and perhaps the Westbrook ruling - by selling individual rap sheets of court defendants. An expert in computer crime, the assistant DA was immediately asked to interpret Woods's decision. Ingraham's written response only fueled the uproar: "If a private person can obtain a copy of any record which would contribute to the development of a criminal offender record information file, it is clear that such a procedure is exactly what was prohibited in Westbrook v. L.A." For the first time, the Supreme Court's "practical obscurity" argument had trickled down through state courts and was being construed not only to deny public access to criminal justice databases, but individual court records as well.
For about two weeks the county declared even basic court dockets off limits. It later reversed this position, however, under pressure from groups such as the California Newspaper Publishers Association. "The difficulty in the Westbrook case was that the court's database was enriched," says Terry Francke, attorney and executive director for the First Amendment Coalition in Sacramento. "But that's a problem of how the court organizes its information, not the law." The databases were rife with everything from aliases to Social Security and driver's license numbers. But the solution, Francke proposes, is technological: weed out sensitive data and the rest can be released in compiled form.
Ingraham now says his memo was "unfortunately" phrased - he meant that only databases enriched with in-depth criminal rap sheets should be off limits - but his reasoning was sound: When federal lawmakers helped states set up criminal databases, he says, they meant to make law enforcement more effective, not turn sensitive criminal data into fodder for information marketeers.
In response to the Westbrook imbroglio, the state judiciary's Court Technology Committee has drafted plans that, in effect, side with Francke. The proposal would make access to electronic records roughly equivalent to their availability in paper.
But Beth Givens, who along with Francke belonged to a committee that made recommendations to the state courts, says the public may not accept the proposed rules. "That's because in the meantime, we had P-Trak," says Givens, director of the Privacy Rights Clearinghouse in San Diego.
P-Trak is the trade name of a popular personal locator service offered by online information provider Lexis-Nexis. To privacy buffs like Givens, however, P-Trak became a symbol of private misuse of government data after Lexis-Nexis announced it would provide Social Security numbers in readily accessible portions of its huge database.
"With P-Trak, we saw the outcry over access to information that's benign compared to court records," says Givens. Lexis-Nexis ultimately withdrew portions of the P-Trak service under public pressure. "People went berserk that their Social Security numbers might be sold online. What will their reaction be when they find out that their divorce decree will also be published on the Internet for all to see?"
To privacy hawks like David Sobel, government has a duty to protect the data it collects. "When I provide information to register a motor vehicle, for example, it's because I recognize some legitimate government reason for that information being collected," says Sobel, legal counsel for the Electronic Privacy Information Center in Washington, DC. "But that doesn't mean this DMV database should become a taxpayer-subsidized commodity that some private company can scoop up and market as its own product."
Left unguarded, public records can even be deadly. In 1989, an obsessed fan stalked and murdered TV-sitcom star Rebecca Schaeffer after hiring a private investigator to get the actress' address from California's DMV. At the core of the case was the computer-aided ease with which the information was obtained. The tragedy shaped state then federal laws aimed at shielding personal registry information, and it's also one reason that amendments were made
to the California Vehicle Code to allow car owners to list a nonresidential "buffer" address. It's something privacy advocates would like added to the Federal Driver's Privacy Protection Act, passed in 1994.
Press activists bristle at such restrictions. They note that stalking, murder, and rape were rampant well before the PC revolution. Committed stalkers - and other criminals, they argue - do just fine without DMV records.
Furthermore, blacking out such records would stifle one of the more laudable recent media trends: computer-assisted reporting. "We now have hundreds of stories of computer-assisted reporting using databases to do socially valuable work," says Brant Houston, managing director of National Institute of Computer Assisted Reporting in Columbia, Missouri.
In the last 10 years, Houston says, reporters with computers have used death records to uncover voter fraud, motor vehicle records to reveal dangerous bus and ambulance drivers, and FAA records to uncover problem planes. All of this information was electronically gathered. In 1989, such investigative journalism techniques helped The Atlanta Journal-Constitution win a Pulitzer Prize for uncovering discrimination against black homebuyers.
But EPIC's Sobel is incredulous. "How often have my DMV records been accessed by the news media to uncover voter fraud as opposed to how many times they've been accessed by direct marketers who wanted to sell me tires?"
A record of mistakes
Privacy advocates also argue that electronic documents can be dangerously inaccurate, incomplete, and misleading. The public portion of court dockets, for instance, typically lacks background information, as well as updates on acquittals. "As our ability to collect and disseminate information increases, the accuracy of the information in the records does not necessarily increase," says Robert Ellis Smith, publisher of Privacy Journal in Providence, Rhode Island.
In 1994, Smith notes, Department of Justice head Janet Reno conceded as much. Only about half of the FBI's 17.5 million criminal background reports list the final outcome of warrants and arrests, Reno revealed. On the state level, anywhere from 30 to 60 percent of crime records are similarly incomplete, Smith adds.
And false information has a nasty way of sticking. According to a report in Privacy Journal, Mick Jagger was stopped by Japanese border agents in 1988 because of a little-known 1972 arrest for possession of marijuana in Rhode Island. But these records should have been erased from the state's database after five years. Nevertheless, they showed up on a computer screen in Tokyo 16 years later.
Private information database vendors can also make huge mistakes. Consider the case of James Russell Wiggins. In 1990, Wiggins was fired by District Cablevision Inc. in Washington, DC, after the credit bureau Equifax Services Inc. informed the cable company that Wiggins had months earlier been convicted of a felony cocaine-possession charge. There was one small problem: the person convicted was James Ray Wiggins, not plaintiff James Russell Wiggins. To make matters worse, James Ray Wiggins had been convicted not of a felony, but of a misdemeanor possession charge, a petty offense - which in Washington, DC, might likely be wiped from the record once the fine or sentence is satisfied.
During Wiggins's defamation suit, Equifax maintained it corrected its mistake within the five-day limit established by the Fair Credit and Reporting Act. The claim is still under dispute; meanwhile, the Atlanta-based company has settled with the plaintiff for an undisclosed sum.
But information brokers say activists like Smith distort their records and ignore the industry's social benefits. Criminal record reports, based largely on courthouse documents, help weed out employees who might steal from the company or lie about their past, says David Dennin, vice president of marketing for Information Resource Service Company (IRSC), a Fullerton, California-based information broker. He says such criminals often seek jobs that directly relate to their past convictions.
"Shoplifters seek positions in inventory; embezzlers want to be auditors," notes Dennin, adding that employers have a right to know who they're hiring. (An IRSC Web-page ad headed "Hiring with confidence" reads: "IRSC is your courthouse connection, providing timely access to any criminal or civil court in the country.")
Quick and easy access to motor vehicle databases, meanwhile, reduces insurance rates, argues Dan Duncan, vice president of government relations for the Information Industry Association (IIA), which represents roughly 550 information, content, and service providers. "Some people think the government shouldn't give out any information," says Duncan. "But if that were the case, you'd have to wait 20 years to get a home loan or a credit card. Lenders couldn't find out if you're creditworthy."
The fourth estate, meanwhile, finds itself in an uneasy alliance with the IIA on such matters. The way to crack down on information abuse, most press advocates say, is not to unilaterally erase the public slate, but to aggressively prosecute illegal use of private data. "The real stigma (of criminal records) arises because government custodians of the information are able to release what they want, instead of making it generally available," says Kirtley, of the Reporters Committee.
In some ways, the whole debate boils down to who owns the information - the government or private citizens? Or maybe anyone with the pocketbook and the mainframe to handle the data tapes?
Take the case of Maryland's division of state records. In short, the agency plans to enter exclusive contracts with private firms which in turn would resell electronic versions of the state's book of regulations. In addition to up-front fees, the state would get royalties when the companies resell the documents, thus recouping the state's costs in producing electronic tomes. "Such additional costs are permanent and ongoing," Robert J. Colborn, administrator of Maryland's Division of State Documents, told information industry advocates in an October 1996 letter.
But while Colborn suggests Maryland taxpayers shouldn't simply give away data they pay to collect and store, others wonder why those same taxpayers should pay a private company for access to information the public already owns.
A similar debate is unfolding internationally. In an effort to protect database marketers, the World Intellectual Property Organization is deliberating a treaty that would allow companies to copyright "value-added" databases, even when they're derived largely from public sources.
While the IIA says the treaty is needed to protect private investment, a number of library, science, and press groups have managed to scuttle quick passage of the measure, complaining that the treaty provides no "fair use" provisions. In the past, such provisions have allowed scientists and educators to use and share important scientific discoveries.
"Facts are in the public domain," argues Prue Adler, assistant executive director of the Association of Research Libraries. "If instead we have facts on a pay-per-view basis, it's not going to be economically feasible - particularly for small research facilities - to conduct important research."
Many of these quandaries arise because society is still not sure how to define public records that are increasingly enshrined in electronic form. Government email is perhaps the most stunning example. In two separate cases in the late '80s, for example, federal courts required that the White House save, and eventually make public, executive office email. Lawyers for the executive branch, however, suggested that personal email was akin to a private phone conversation, not a public document. The courts disagreed.
The courts must now decide whether the Feds' cybernetic memos must also be stored in electronic form. Citing the prohibitive cost of making vast email archives user-friendly, US Archivist John Carlin issued regulations in 1995 that allow fed-eral agencies to destroy email once paper copies of those messages are made.
Last December, however, a consortium of libraries, researchers, and journalists sued the archivist, arguing that electronic libraries are uniquely valuable. On computer, the emails can be easily sorted and searched, while on paper they lack valuable routing and timing data.
To David Bearman, all this has a somewhat familiar ring. Groundbreaking inventions such as the telegraph, telephone, xerox, and fax machine were all followed by new business practices and spirited debates over new records policy. Email, he says, is no different.
"At first, email seemed an extension of telephonic communication," says Bearman, president of Archives and Museum Informatics, a consulting firm in Pittsburgh. "But in fact, the way email has evolved in most organizations, it's become the analog of written communication, not telephony."
In some areas, at least, government records policy is starting to catch up with the information age. Last fall, for example, Congress amended FOIA to make more information in federal databases easily accessible. In the past, federal agencies have balked at database searches, claiming they were unduly burdensome or not covered by FOIA because the search, in essence, "created" new documents.
Still, government has a lot of catching up to do. For an information democracy to work efficiently, or at all, most say the government must simultaneously address myriad ethical, legal, economic, and technical questions. Who will pay to format and store the records? Will they be retrievable using the technology developed by 2050? Who will have access to what?
If these questions aren't addressed, court decisions (as in Westbrook) will be framed by the parameters of outdated programming; poorly reasoned tenets of law will become encoded in the software running tomorrow's democracy; there will be no money to facilitate the distribution of information fairly to all; and the average bloke will still have no protection from Big Brother.
